Xie v North Sydney Council

[2020] NSWLEC 1149

Land and Environment Court

New South Wales

Medium Neutral Citation:	Xie v North Sydney Council [2020] NSWLEC 1149
Hearing dates:	26 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The appeal is upheld. (2) The Respondent's Stop Work Order dated 4 December 2019 is modified in accordance with section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979. The order, as modified, is set out in the order annexed and marked ‘A’. (3)   Each party to pay their own costs of the proceedings.
Catchwords:	APPEAL – development control order – stop works order – conciliation conference – agreement – order modified
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Peter Ping Xie (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M Sonter (Solicitor) (Applicant) K Law (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Matthews Folbigg (Respondent)
File Number(s):	2019/403332
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr Xie appeals against a development control order issued by North Sydney Council on 23 December 2019, which required him to stop and prevent building works being carried out at 17 Milson Road, Cremorne Point. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. The order is a stop work order, issued pursuant to Item 2 of Part 1 of Schedule 5. It was issued because the Council was concerned that the works being undertaken at the property were not undertaken in accordance with the development consent D329/17 for the carrying out of development on the site. Mr Xie appeals against the order pursuant to s 8.18 of the EPA Act.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 26 March 2020 by telephone. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is that the order is modified so that there are some works, referred to in the modified order as “Permitted Works” and “Additional Permitted Works” that can be carried out on the site. The Additional Permitted Works are not permitted by the modified order to be carried out unless certain particulars have been provided to the Council, as outlined in the modified order. The modified order is Annexure A to the orders recorded in [6] below.

4. As the presiding Commissioner, I am satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

6. The Court orders that:

1. The appeal is upheld.

2. The Respondent's Stop Work Order dated 4 December 2019 is modified in accordance with section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979. The order, as modified, is set out in the order annexed and marked ‘A’.

3. Each party to pay their own costs of the proceedings.

………………………

J Gray

Commissioner of the Court

Annexure A (5.21 MB, pdf)

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